ABSTRACT:
After the Supreme Court's 2007 decision in Bell Atlantic Corp. v.
Twombly, an antitrust plaintiff who tries to plead an agreement in
restraint of trade under Section 1 of the Sherman Act must allege more
than parallel conduct and an undefined "conspiracy." Now, the complaint
must include "enough factual matter (taken as true) to suggest that an
agreement was made." Although the Court insisted it was not imposing a
heightened pleading standard, it did require antitrust plaintiffs to
provide enough detail to make the claimed agreement plausible. In this
article, I examine an important substantive consequence of Twombly's
pleading regime. In nineteen reported cases, federal courts have
applied the new pleading standard to complaints alleging concerted
action under Section 1 of the Sherman Act. In doing so, the courts have
had to address a crucial defect in the substantive law of agreement:
the Supreme Court's traditional definitions of agreement, which Twombly
itself simply repeated, are too vague to help litigants and courts
distinguish between consciously parallel conduct and concerted action.
In the course of applying Twombly, however, the lower courts have
adopted a more meaningful definition, one that requires that the
parties have communicated to each other their intentions to act in a
certain way, and their reliance on each other to do the same. This
clarification of the standard has important implications for the role
of discovery in pleading and resolving claims of concerted action.